The Digital Journalist

Common Cents:

Good Guys ... Bad Contract

June 2007

by Mark Loundy

"The good guys are always stalwart and true. The bad guys are easily distinguished by their pointy horns or black hats, and we always defeat them and save the day. No one ever dies... and everyone lives happily ever after."

— Giles in "Buffy the Vampire Slayer"

They've always been one of the "Good Guys." The people who work there still are. But the latest contract rolled out to freelancers at USA Today is a step backwards.

The good news is that the day rate has been increased by $100. The bad news is that instead of one-time print rights, they are now asking for all rights in perpetuity.

Far from being a local operation, USA Today's parent corporation, Gannett, owns more than 100 newspapers with a combined daily circulation of more than seven million. It also operates more than 20 television stations and runs more than 150 affiliated Web sites. It recorded more than $3 billion in gross profits in each of the last three years. In day rate terms, that's more than $9.5 million (after all expenses) every single day of the year.

Veteran USAT contributor Darron Silva wrote back to the publication saying that he could not sign the contract in its present form:

"This goes beyond just editorial usage, and includes commercial uses, advertising uses, reprints, etc, etc. I am very concerned with this, because this would cost me a lot of money. Any commercial, advertising, or reprint use would warrant a much higher licensing fee," wrote Silva. "For example, if a company wanted to reprint a photo for a brochure, and USA Today or Gannett has a vehicle for reprint sales, they could order 10,000 copies of the photo/brochure. This would normally cost several thousand dollars for the license to reuse the image in such a commercial usage, but this contract would allow USA Today to keep all of that money with no additional payment to the photographer."

A long-time good guy, Frank Folwell, is Deputy Managing Editor at USA Today. The paper has resisted (and continues to resist) Gannett's move to demand Work-for-Hire contracts from its freelancers. Folwell says that they have no intention of licensing freelancers' images to third parties, "The contract does not eliminate the freelancer's secondary market for his or her work outside of Gannett's products and services," said Folwell. "Gannett cannot license the freelancer's content to any licensee for any use. The grant of rights in the agreement is limited to the use of the freelancer's work in connection with Gannett's publications, websites, television station broadcasts, products or services."

However, the lawyers who crafted the new contract included the right to do exactly that. The section dealing with rights refers to, " connection with any website, television station broadcast or other broadcast or service offered, owned or operated by a Gannett Entity. USA TODAY, Gannett Co. Inc. and their respective affiliated companies and licensees..." Despite Folwell's stated intent, the term "licensees" can legally be any third party. Gannett may, if it wishes, go into competition with its freelancers using the freelancers' own images. If Gannett wanted to limit the use to Gannett properties, the language could easily have been more restrictive. With the amount Gannett pays for legal advice, I would hope that this was not merely sloppy editing.

Even if the rights were restricted to Gannett properties, the $100 increase doesn't come close to making up for what amounts to a rights grab. Even under USA Today's own previous contract, they paid between $50 and $200 for reuse in one Gannett print publication. That reuse, just for Gannett's daily newspapers, would be worth a minimum of $5,000 to more than $20,000 per image.

All of this would be moot if photographers, individually, merely exercised good business practices.

Freelancer Oscar Sosa's business may leave newspapers behind, "Wash. Post only wants to pay $175, New York Times pays $200 and most papers don't want to go past $150," said Sosa. "That simply isn't enough to justify the usage they demand. I know editorial is lower paying than most of the industry, but those rates and usage demands are unreasonable. If every publication went up to $375, I'd consider to keep things as they are, but with the cost of living and the increased rights use and Work-for-Hire demands, I just don't see the industry meeting my needs."

Word from inside USA Today is that not many of their freelancers are signing the new agreement. If that's true, then things may be changing for the better. Contracts are meant to be negotiated. Print-based newspapers have no need for more than one-time rights. The days of pleading "We're not making any money from our Web site" are over. Major media companies like Gannett, Tribune and The New York Times are making extraordinary profits. If they want broader rights, they should pay for them.

It is utterly reasonable to lineout objectionable portions of a contract and insert your own language. That's how business is normally conducted. Photographers who cannot bring themselves to require reasonable fees are simply handing cash to companies that are playing them for fools. They should either stop letting the editorial industry fleece them or they can follow Oscar Sosa, who said, "I'm opening a studio and moving on."

"The Good," "The Bad" & "The Ugly" and "Leftovers" will return next month.


NPPA Independent Photographers Toolkit

Advertising Photographers of America Business Manual

Common Cents Column On The Cost of Doing Business

Editorial Photographers

Editorial Photographers Yahoo! Group (Message Archives)

Small Business Administration

NPPA Online Discussion Group Instructions

© Mark Loundy

Mark Loundy is a visual journalist, writer and media consultant based in San Jose, California.